My old firm represented both X and Y. I only ever worked for Y. Now Y wants me to take on a dispute against X. Can I, and does the firm still representing X have a conflict?

Plain-English summary

The law firm by which the inquiring attorney was previously employed represented two clients, X and Y. The attorney never rendered services to or had contact with client X, but worked with client Y on a number of matters. After leaving the firm, the attorney was asked by client Y to represent Y in a legal dispute involving client X, whom the former firm continues to represent. Client Y was concerned that the former firm possessed knowledge about the present dispute that could be harmful to Y. The attorney asked whether a member of the firm representing X has a conflict of interest because the firm previously represented both X and Y.

The panel declined to opine on whether a member of the firm presently representing X faces a conflict of interest, citing Rule 2(a) of the Rules of the Rhode Island Supreme Court Ethics Advisory Panel, under which the panel may decline where the request seeks an opinion about the conduct of a lawyer other than the inquirer.

On the inquiring attorney's own conduct, the panel took the position that the attorney may not continue representing client Y in the dispute with client X unless the attorney obtains the informed consent of client X. The panel reasoned that the attorney's previous employment at the firm representing X afforded the attorney access to confidential information about X, and that the fact that the attorney may never have had personal contact with X is irrelevant. The panel identified Rhode Island Rule of Professional Conduct 1.9 as governing.

Currency note

This opinion was issued in 1991, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.9 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can I represent a former firm client against another client of that firm?

A: Under this opinion, only with consent. The panel concluded the inquiring attorney may not represent Y against X without X's informed consent, under Rule 1.9.

Q: Does it matter that I never personally worked for X?

A: Per the opinion, no. The panel found the attorney's former employment at the firm representing X afforded access to X's confidential information, and that the lack of personal contact with X is irrelevant.

Q: Would the panel say whether a lawyer still at the firm has a conflict?

A: No. The panel declined under its Rule 2(a), which lets it decline a request seeking an opinion about the conduct of a lawyer other than the inquirer.

Background and rules framework

The opinion applies Rule 1.9 (Conflict of Interest: Former Client), corresponding to Model Rule 1.9, which bars a lawyer who formerly represented a client from representing another person in the same or a substantially related matter materially adverse to the former client without consent. The panel treated the attorney's firm-wide access to X's confidential information as bringing the attorney within Rule 1.9 as to X. It separately relied on its jurisdictional Rule 2(a) to decline the question about another lawyer's conduct.

Citations and references

Rules of Professional Conduct:

• MR 1.9 (duties to former clients)
• RI RPC 1.9

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 91-36: Deposing Counsel and a Former Joint Client Conflict
• RI EAP Op. 91-33: No Conflict When a Former Client May Testify Against a Current Client
• RI EAP Op. 91-35: A Departing Associate's Duties to Firm Clients

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2091-48.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Digest of Ethics Advisory Panel
Opinion #91-48
Issued July 18, 1991

An attorney seeks Panel advice concerning a situation the attorney believes presents a conflict of interest.

The facts described are as follows:

The law firm by which the attorney was previously employed represented two clients, X and Y. The attorney never rendered any services or had any contact with client X. The attorney worked with client Y on a number of matters.

The attorney is no longer associated with the above-mentioned law firm. Client Y has requested the attorney represent client Y in a legal dispute involving client X. The law firm by which the attorney was previously employed continues to represent client X.

Client Y is concerned that members of the law firm which previously represented client Y possess knowledge and information about the present legal dispute with client X that may be harmful to client Y.

The attorney inquires as to whether a member of the law firm which represents client X suffers from a conflict of interest because the law firm previously represented both clients X and Y.

The Panel declines to render an opinion as to whether a member of the law firm presently representing client X is faced with a conflict of interest. The Panel cites Rule 2(a) of the Rules of the Rhode Island Supreme Court Ethics Advisory Panel, which states in pertinent part:

The Panel may decline to render an advisory opinion if any of the following circumstances exist:

The request seeks an opinion about the conduct of a lawyer other than the inquirer.

The Panel is of the opinion that the inquiring attorney may not continue representing client Y in the legal dispute with client X unless he/she obtains the informed consent of client X. The Panel takes the position that the inquiring attorney's previous employment as a member of the law firm representing client X afforded the attorney access to confidential information about client X. The fact that the attorney may never have had any personal contact with client X is irrelevant. Rhode Island Rule of Professional Conduct 1.9 provides in pertinent part:

A lawyer who has formerly represented a client in a matter shall not thereafter:

Page Two
91-48

(a) represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client consents after consultation...